ABA Journal - December 2009

Capture the energy of a border collie—that intelligent working breed known for nipping at cattle heels, almost pulling the herd ahead with an invisible string—and you’d get a sense of the spirit of Erica Moeser.

a bar for all

But her “herd” is a tough-to-direct bunch: She’s out to move the legal profession into a uniform, nationally accepted bar examination.

It was once seen as a radical idea, but Moeser, president of the National Conference of Bar Examiners, expects that six to 10 states will use the uniform examination in 2010, probably during July. The test has three parts:

1. A multistate bar exam—“a six-hour, 200-question, multiple-choice examination covering contracts, torts, constitutional law, criminal law and procedure, evidence, and real property.”

2. A performance test—two 90-minute sections “covering legal analysis, fact analysis, problem solving, resolution of ethical dilemmas, organization and management of a lawyering task, and communication.”

3. An essay portion—nine 30-minute essay questions, with most jurisdictions choosing six of the nine.

Test results would be figured into a portable score that participating states would honor.

“The big advantage, and the logical one, is it’s putting law in the same position as every other profession you can name,” she says about licensing. “A lot of law, like the rules of evidence, is common. … That lends itself to this sort of testing.”

The NCBE, based in Madison, Wis., developed the test, but participating states decide the minimum passing score. And if examiners include a test portion on their state laws, other states would not include that in the portable score.

The time to act is now, Moeser says. She mentions globalization, as well as a terrible job market that leaves many students unable to tell what state they’ll be working in when it’s time to sign up for bar exams and prep courses. “The idea was premature two decades ago,” she says. “What we’ve discovered is the further we move into making this a reality, the more the sea is parting for us.”

“She senses when there’s been support to move ahead and when there isn’t enough support … and whether there’s a middle ground,” says Chief Justice Gerald W. Vande Walle of the North Dakota Supreme Court, a past chair of the ABA Section of Legal Education and Admissions to the Bar. “She can interpret a group that I belong to better than I can.”

BRISTLY CUSTOMERS

STILL, IT HASN’T ALWAYS BEEN EASY. LAWYERS WHO WORK IN ATTORNEY LI- censing agencies can be a maligned group, and the egos of some academics and the judiciary present other challenges.

PHOTOGRAPH COURTESY OF ERICA MOESER

“I’ve seen her in front of audiences where members are antagonistic, and she doesn’t snap back,” says Mary Kay Kane, a former dean of the University of California’s Hastings College of the Law in San Francisco. “She respects the fact that people are snapping because they have a strong view, and she’s very good at not taking things personally.”

Kane is on the council of the legal ed section and, like Vande Walle, on the NCBE Special Committee on the Uniform Bar Examination.

When speaking about Moeser,
Kane mentions her listening skills
and how she uses others’ ears to
help her. Moeser assembled a work-
ing group for the uniform bar, and as
she spoke with different attorney
regulation agencies, group members
were invited “not to lecture, but to
listen,” Kane says. After the meet-
ings, Moeser asked members what
they thought of the
agencies’ reactions
rather than relying
solely on her own as-
sessment.
“Even those who
are not sold on the
idea—I’ve been ab-
solutely delighted by
their willingness to
open up and have
the conversation,”
Moeser says.
Midwestern practi-
cality also figures in
with Moeser, though
she grew up in New
Orleans. She’s mar-
ried to Dane County
(Wis.) Circuit Judge
Daniel R. Moeser.
They have two sons
who are both lawyers.

Moeser, 63, is a former director of the Board of Bar Exam-

iners in Wisconsin (where the exam is waived for state law school graduates whose GPA in required courses meets a certain standard). She joined the NCBE in 1994 and started to think seriously about a uniform bar examination five years ago.